Examining the Obesity Epidemic’s effects on Public Health through the Lens of Marketing Food to Children

By Marissa Lydon, Office of the Attorney General of Texas, Austin, TX

Introduction

Childhood obesity is a major public health concern in the United States. The obesity epidemic has been on a steady rise for the last thirty years, with obesity rates among children and teens almost tripling between 1980 and today.1 According to a study by the Centers for Disease Control and Prevention, it is estimated that obesity costs the healthcare system $147 billion annually.2 These costs, accounting for approximately nine percent of annual medical costs, are generated from the treatment of diseases brought about by obesity, such as diabetes, heart disease, respiratory problems and high blood pressure.3

The issue is especially disconcerting among young people, as studies have shown that children who are obese prior to age eight are much more likely to be obese as adults. This creates additional strains on the healthcare system as well as increased costs due to increased risks of obesity-related illnesses.4 Despite this growing problem, U.S. children are being targeted at alarming rates with marketing for foods high in calories, fat, and sugar, and studies have shown the importance of advertising in influencing unhealthy food choices of children.5 As such, a question emerges as to whether marketing foods and beverages of little nutritional value to children is partially to blame for the steady rise of childhood obesity and what, if anything, can be done to counter this problem.

For more information related this topic, the Health Law Section is hosting a program, "What’s for Dinner? Food Regulation and Public Health" at the upcoming Emerging Issues in Healthcare Conference, February 20-23, 2013 in Miami, FL.

Since 1994, companies have introduced over 600 new food products aimed directly at children; companies such as McDonalds, PepsiCo, and others spent over $1.5 billion in advertising in 2010.6 Sixty-three percent of this total was spent marketing breakfast cereals, fast food, and sodas.7 In addition to the volume of marketing to children through the advertising budgets of large fast food and beverage companies, marketing also takes the form of commercials during prime time programming,8 brand tie-ins between television shows and food manufacturers, such as cartoon characters on juice and cereal boxes, and with toy manufacturers and publishing companies. Smuckers, for example, has a Cabbage Patch doll designed to sell Goobers, and Scholastic has a math education book featuring Skittles.9 Of course, young children are not going to the grocery store and purchasing these foods on their own. Parents should bear some responsibility in this matter in terms of educating their children about making healthy food choices and monitoring the food that gets purchased at the grocery store. Unfortunately, the busy lifestyle of most families today, coupled with parents not being fully aware of the nutritional value of the products and the aggressiveness of the marketing of these products to children, may be causing parents to be pressured into taking the easier route out of the store by purchasing the products their children heard about between their Saturday morning cartoons.

Is There Any Room in the Law to Address this?

Litigation (or the threat thereof) can be a powerful tool in effecting change. Bridging the gap between marketing food to children to an actual claim to be litigated is in and of itself a difficult task. The grounds for litigation would likely be that the aggressive marketing of unhealthy products to children is creating and supporting our current obesity crisis and/or causing various obesity-related health issues in children.

If a larger, well-known company is targeted for certain practices, other companies may reevaluate their own practices to avoid lawsuits in the future. Additionally, without ever going to court, the discovery process may unearth documents or practices that may help sway public opinion towards change. However, litigation is costly and time consuming, and in the case of a multifaceted public health and policy issue such as obesity, the prosecution of a single company for a single issue might not create the consensus needed to work towards long-term policy changes.

Marketers and food companies are likely to rebut any litigation with the fact that the obesity epidemic in this country has, only within recent years, come to public and media attention, but the food being marketed has been in existence for much longer. Again, there are no definitive answers to these questions, but perhaps because of the current lifestyle of families rushing from school to sports practices to other activities and not having time to sit down as a family to eat, or because portion sizes have continued to grow with every generation, there may be some room forming in the law and in the public psyche to address these issues in new and unique ways.

Another obstacle to using a legal remedy to address marketing food to children is First Amendment protection. The most influential standard regarding restricting commercial speech, the Central Hudson test, permits the government to restrict commercial speech if the product is unlawful or the advertisement is deceptive.10 Even if the speech is not deceptive, this test allows restrictions if they advance important public interest and are no more extensive than necessary to serve that interest.11 While commercial speech is strongly protected, the Central Hudson standard might provide some avenues to tackle the childhood obesity epidemic through marketing to children. Because the test does not protect deceptive speech, it may be able to be used to place restrictions on product placement and using popular characters to sell products. This could be an option if it can be proven that the messages sent from these forms of advertising are deceptive to children because children are unable to distinguish the characters and product placement in television shows from the actual products they are promoting. The angle of deception could also be an option if the message in the ad is aimed at increasing children’s self esteem or self-image if they buy the product.

There are other corrective actions that can be taken in order to counter the negative effects of marketing food to children without directly implicating First Amendment issues.12 Some of these include developing public service media to promote healthy eating and drinking, developing marketing campaigns that highlight the negative effects of foods high in calories and sugar, restricting product placement in children’s television shows, and setting nutritional requirements for meals that include toys.13 Additionally, longer-range approaches might include following in the footsteps of the recent New York City regulations regarding the restriction of extra large soft drinks. Another approach could include using consumer protection laws more fully to prevent obesity through advertising.14 The Federal Trade Commission and state attorneys general have the ability to challenge unfair and deceptive practices. Using consumer protection laws to target advertising requires the consumer to be held to the standard of a “reasonable consumer.” This standard might be difficult to meet for an adult, but might be slightly easier to meet for a child, due to childrens’ increased vulnerability and their potential lack of ability to distinguish advertising from regular programming messages.15

Conclusion

Solutions to this public health crisis are multifaceted and require interdisciplinary cooperation from government agencies, researchers, schools, non-profits, advertisers and individual families. However, in looking at specific pieces of this problem, the nation can come closer to understanding and implementing new and innovative ways to combat it.